M D RAJAN Vs. I T C LIMITED

JUDGEMENT

(1.) THE plaintiff in the suit is the appellant in this second appeal. THE respondents are the defendants in the suit. THE plaintiff laid the suit for a declaration that the order of termination dated 16.9.1976 issued by the first defendant is null and void and that the plaintiff shall be deemed to be in continuous employment under the first defendant company with effect from 1.4.1977 and for an injunction against the first defendant restraining it from operating the termination order dated 16.9.1976. On contest by the defendants, the plaintiff failed with regard to the reliefs asked for in the first Court. This result, the first Court arrived at, taking note of the ratio of the Supreme Court in the pronouncement in Vaish College v. Lakshmi Narain, (1976) 2 S.C.C. 58: (1976) Lab. I.C. 576: (1976) 2 S.C.R. 1006: A.I.R. 1976 S.C. 888. However on additional Issue No. 2 as to whether the plaintiff� s joining the contributory pension fund would entitle him to be in service till he attains the age of retirement notwithstanding the terms of contract, the first Court opined that the plaintiff will be so entitled.

(2.) THE plaintiff appealed because he did not get the reliefs at the hands of the first Court. THE lower Appellate Court assessed the facts of the case in the light of the principle enunciated by the Supreme Court and dismissed the appeal. On behalf of the defendants, it was urged that even the finding of the first Court on this additional Issue No.2 is not sustainable in view of the pronouncement of the Supreme Court. This objection has found counternance before the lower Appellate Court. Ultimately as stated above the appeal by the plaintiff was dismissed by the lower Appellate Court. Hence this second appeal.

(3.) EXHIBIT A-4 dated 22.5.1962 is the contract of personal service entered into between the plaintiff and the second defendant, the Manager of the first defendant company. As per this document, there is no ambiguity that the contract is a contract of personal service. The order of termination dated 16.9.1976 as per EXHIBIT A-7 was issued as per clause 13 (a) of EXHIBIT A-4, the contract of personal service. The first defendant company is not a statutory body. It is only a company incorporated under the Companies Act. The ratio of the Supreme Court in the decision referred to above is clear and it has been set out iri the following terms: "On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions: "(i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute."